Chapter 3

Step 2: Testing the tool on sample offences

3.26We recognised that, having developed the tool, we needed to develop rules and principles to ensure that those applying it were as consistent as possible in the way in which they identified the interests harmed by an offence and determined the extent of that harm. In order to do so, we tested the tool on a sample of imprisonable offences (30 offences) drawn from the five Acts included in this review. We chose offences that covered all five interests; captured varying levels of injury to those interests; and ensured that the approach of discounting the level of injury for inchoate offences was satisfactory.

3.27We formulated a hypothetical worst case scenario for each offence. Each of the three people working on the project then applied the tool to derive a harm score for that scenario; discussed how they had arrived at those scores; and agreed upon a set of protocols to ensure a common approach. The issues that required protocols fell into seven categories:

Issue 1: Formulating the worst case scenario

3.28Four difficulties were encountered in devising the worst case scenario. The first difficulty concerned the extent to which secondary interests that might be harmed by the worst-case scenario should be identified in the description of the case and taken into account in arriving at the harm score.

3.29For example, take two instances of armed robbery of a bank. Both involve a high degree of planning, multiple victims, weapons, shots fired, injuries and a large amount of money taken. In the first scenario, a police officer arrives at the bank and is shot at by the fleeing robbers. In the second scenario, the officer arrives at the bank only after the robbers have left. The addition of the police officer in the first scenario not only increases the level of injury to the physical integrity interest, but it also introduces an injury (and quite a significant one) to the governmental interest through the threatened injury to a police officer.

3.30In the first scenario, it clearly makes sense to include the presence of the police officer within the depiction of the case, thus raising the harm score to a greater level than the second scenario where the officer arrives after the event. Ultimately, however, there is inevitably a measure of arbitrariness as to what secondary interests may be harmed by the worst case scenario. We could do no better than to review the cases that had resulted in the highest custodial sentences for that offence (where available – there had rarely been convictions for some offences in the last decade), and to engage in "capped imagination"; that is, to envisage the interests that could realistically be harmed given the nature of the offence in question and the kinds of circumstances in which it might be committed.

3.31The second difficulty concerned the extent to which an injury should be regarded as risked or harmed when there is another more serious offence covering the same or similar behaviour. For example, a very serious assault on a person resulting in lasting injuries legally constitutes common assault (s 196 of the Crimes Act 1961, maximum one year’s imprisonment), but it can also be charged as wounding with intent to cause grievous bodily harm (s 188 of the Crimes Act, maximum 14 years’ imprisonment) or another of the serious assault offences. Another offence illustrating the same issue in a rather different way is that of abduction of a young person under the age of 16 years for the purposes of depriving a parent, guardian or caregiver of the possession of that young person (s 210 of the Crimes Act, maximum penalty seven years’ imprisonment). If the abduction is committed for the purposes of marriage, sexual connection, ransom or imprisonment, it can be charged as a more serious offence under s 208 or s 209, both with current maxima of 14 years’ imprisonment.

3.32We took the view that, where such more serious offences existed, the worst case of the lesser offence should be set at the threshold point at which the lesser offence tips over into the more serious offence. Otherwise the offender is exposed to a maximum penalty designed for conduct that is essentially more serious than that with which he or she has been charged. The level of harm value for the worst case of common assault was therefore capped at the point below which an assault causes injury (thus exposing the offender to conviction on a more serious injuring charge). The level of harm value for the worst case of abduction under s 210 was similarly capped at the point below which marriage, sexual connection, ransom or imprisonment was the motive.

3.33The third difficulty concerned the extent to which we should include in the worst-case scenario harm to an interest that is not caused directly by the offence in question but by more serious concurrent offending. For example, in practice disqualified driving is generally accompanied by other offending such as driving with excess blood alcohol or speeding; although the disqualified driving, which is fundamentally a challenge to a court order, does not in itself present a threat to physical integrity, the offending accompanying it will generally do so.

3.34The approach we took was to exclude harm resulting from more serious concurrent offending unless that concurrent offending is also an ingredient of the offence in question. In other words, our view is that the maximum penalty for an offence should be set by reference to a worst case scenario involving that offence and any other less serious concurrent offending that will generally be recognised as an aggravating factor in sentencing for the lead offence. Other more serious offences that are committed at the same time should be recognised by way of concurrent or cumulative sentencing for those offences (according to the rules set out in ss 84 and 85 of the Sentencing Act 2002).

3.35For example, we included violence within the worst case scenario for robbery and aggravated robbery because the actus reus of those offences (that is, the definition of the act constituting those offences) includes violence. However, we excluded any actual or potential injury to physical integrity from the worst-case scenario for disqualified driving, since that is not part of the actus reus of that offence.

3.36The final difficulty concerned the extent to which specific offender characteristics that aggravate the offence should be included within the worst case scenario. We decided that all such characteristics (such as a substantial criminal record both for the offence in question and other offending, a breach of trust arising from the offender's occupation or position, premeditation, or the fact that the offender was on bail or subject to a sentence at the time of the offence) should be assumed to be part of the worst case scenario. To the extent that the maximum penalty for a particular offence excludes such characteristics, we reduced the harm score by taking into account the offender’s lesser culpability in Step 4 of our methodology (see below at paragraph 4.15).23

3.37Our approach to this issue is essential to understanding our harm scores and ranking. At first sight, an offence description might suggest that our ranking is wrong, and that the offence does not belong with those placed alongside it. However, that is likely to be because the worst class of case devised under our approach excludes conduct that is covered by a more serious offence.

Issue 2: Double countingTop

3.38As outlined above, our methodology involved scoring the level of injury to both the primary interest and the secondary interests affected by the offence, and aggregating them to produce the final harm score.

3.39This is, of course, unproblematic when the injuries to the various interests are independent of each other. For example, in the case of burglary one of the primary interests affected is the material interest, but there will also be other injuries to the privacy and freedom from humiliation interest (through invasion of the home, the accessing of personal items/documents etc) which arise independently of the material loss. There is therefore no difficulty in simply aggregating the harm scores in relation to each of the interests in order to arrive at a total harm score.

3.40However, sometimes different interests are affected by the same sort of harm, so that a simple aggregation would double count the harm and result in an unjustifiably inflated harm score.

3.41For example, an offender who assaults a police officer attempting to make an arrest substantially affects two interests: the physical integrity interest and the governmental interest. However, the level of injury to the governmental interest should not take into account the violence inflicted on the police officer, the violence is captured by the physical integrity interest. Rather, the level of injury to the governmental interest should focus on the obstruction of a police officer acting in the execution of his or her duty and the attempt to defeat justice by evading arrest.

3.42We therefore decided that injuries to secondary interests ought to be added into the total harm score only when they could be regarded as independent (as opposed to an integral component) of the harm caused to the primary interest.

Issue 3: Indirect harmsTop

3.43In deciding what interests were affected, we also needed to determine the approach to be taken to so-called “indirect harms” that can be consequential upon certain types of offending, notwithstanding that those harms might be far removed (in time or circumstance) from the prohibited conduct. For example, the supply of Class A drugs presents a danger/harm to those that use the drugs (physical integrity), but can also have an adverse effect on social relationships, cohesion and productivity.

3.44In general, we took the view that such indirect harms were relevant in assessing the seriousness of an offence and ought to be taken into account in measuring the level of injury to the various interests. For example, we regarded the supply of Class A drugs as not only affecting the physical integrity interest but also having an indirect but very high impact upon collective welfare.

3.45Sometimes, of course, the interest affected by the indirect harm was the same as the interest affected by the direct harm. The overall level of injury to the interest therefore needed to reflect both sorts of harms.

Issue 4: Self-inflicted harmTop

3.46We did not have regard to self-inflicted injury for the purposes of determining the harm score for the physical integrity interest. For example, we did not regard possession of a Class A drug as causing or risking injury to the physical integrity interest, notwithstanding its potential to cause harm to the person; the offence was scored as harming only the collective welfare interest. That is because we do not think that the criminal law should be used to protect one from oneself. In any event, if self-harm had been included, it would have required the creation of an entirely new interest, since it would self-evidently have required a much lower weighting than harm to others.

Issue 5: Level of injury for material support and amenity interestTop

3.47The following table provides the level of harm score for the material support and amenity interest based on the dollar value of the loss incurred. This was the only such interest where it was possible to provide a table of this sort because of the quantifiable nature of the harm.

  10 >$1M
  9 >$750,000 but <$1M
  8 >$500,000 but <$750,000
  7 >$200,000 but <$500,000
  6 >$100,000 but <$200,000
  5 >$50,000 but <$100,000
  4 >$10,000 but <$50,000
  3 >$1,000 but <$10,000
  2 >$500 but <$1,000
  1 <$500

Issue 6: Offences posing potential rather than actual harmTop

3.48We needed to develop a protocol to score the level of injury to one or more interests caused by offences that posed potential rather than actual harm.

3.49In these cases, the level of injury was calculated by way of a two-step process.24 The first step was to determine the level of harm that would have resulted had the full offence been completed. The second step was to make an appropriate discount to the injury value to recognise that the harm did not eventuate, but was risked.

3.50The extent of the discount to the injury value therefore depended on the nature of the offence and the contingency of the risk of harm. The following chart was used to determine the harm score, depending on (a) the level of consequence from the prohibited conduct relating to the full offence (including type of consequence and severity), and (b) the immediacy or remoteness of the risk of that harm arising.

  Low risk of harm Medium risk of harm High risk of harm Harm is near certain
Low consequence 1 1.5 2 2.5
Medium consequence 2 2.5 3 3.5
High consequence 3 3.5 4 4.5

3.51For example, the offence of possession of a knife under s 13A of the Summary Offences Act 1957 is complete upon possession; it does not require an intent to commit any other offence and does not in itself cause any harm. It therefore poses only a risk to the physical integrity interest, and at a necessarily lower level than would an attempted assault. We determined that it posed a low risk to that interest, but with a medium consequence, thus justifying a harm factor under the above chart of 2.

Issue 7: Inchoate offencesTop

3.52As a related issue, we also needed to develop a protocol to score the level of injury to one or more interests caused by inchoate offences (that is, offences that represent other uncompleted offences).

3.53Attempts and conspiracies are the two main categories of inchoate offences.

3.54Attempts are dealt with in s 311(1) of the Crimes Act, which provides that everyone who attempts to commit an offence when no punishment for the attempt is expressly prescribed, is liable to imprisonment for not more than 10 years if the maximum penalty for the completed offence is life imprisonment, and in any other case to not more than half the maximum penalty for the completed offence.

3.55Conspiracies are dealt with in s 310 of the Crimes Act, which provides that everyone who conspires with any other person to commit an offence is liable to imprisonment for not more than seven years if the maximum penalty for the offence itself exceeds seven years, and in any other case is liable to the same maximum penalty as that provided for the offence itself.

3.56A number of attempts or conspiracies are expressly provided for as specific offences. These are as follows:

Crimes Act 1961

Misuse of Drugs Act 1975

3.57A number of the specific attempt offences exist because in the worst class of case the attempt itself causes substantial harm. For example, all of the attempted sexual offences may cause harm that falls little short of the completed offence, since all that may be required to complete the offence is the final act of penetration. A separate offence, with a higher maximum penalty than that available under the generic attempt offence, is therefore justified to recognise the gravity of the conduct. There is a similar need for a separate offence of attempted murder and attempted piracy, since both may comprise very serious injury accompanied by an intent to kill. Moreover, the extent of the harm caused by these attempts arises partly from the attempt to commit the completed offence, so that the intent to do so is captured by the harm score without the need to enhance culpability and without the need to adjust for any additional element of risk. We therefore scored and ranked these offences simply by reference to the extent of harm to the relevant interests in the usual way.

3.58The reason for the existence of some of the other attempt and conspiracy offences is also obvious: there is no completed offence to which they precisely relate. The offences in ss 115, 116, 117(e) and 309 of the Crimes Act fall into this category. In this case, the offences were scored and ranked by reference to our approach to risk described above (paragraphs 3.48-3.51).

3.59However, it is difficult to discern the reason for the existence of the remaining attempt and conspiracy offences, given the generic regimes governing attempts and conspiracies in ss 310 and 311 of the Crimes Act. None of them seem to justify a different approach from that taken in relation to attempts and conspiracies more generally. For example, we do not know why attempted treason is explicitly addressed in s 74, nor why it has a maximum penalty that is the same as that for the completed offence. Similarly, we do not know why attempted conversion of a vehicle or other conveyance is explicitly addressed in s 226, nor why it has a maximum penalty of only two years in comparison with the maximum penalty of seven years for the completed offence.

3.60We therefore decided not to include these offences in our ranked list (see further below at paragraph 4.40). We think that these offences ought to be repealed, but if they remain they should have a maximum penalty that is in line with the generic approach taken in ss 310 and 311.

3.61That gives rise to the question as to what the maximum penalties under ss 310 and 311 ought to be.

3.62Attempts under s 311(1) can be assumed to result in either the mere risk of harm or at the most a level of harm substantially below that caused by the completed offence. When a harm score is developed on this basis, it ends up placing the offence in a penalty category that is, on current penalty levels, roughly half the penalty category for the completed offence. For example, the score for the offence of burglary placed it in Category F, alongside offences that predominantly have current maximum penalties of 10 years’ imprisonment. Our scoring on the risk rules placed attempted burglary in Category K, alongside offences with maximum penalties ranging from two to seven years’ imprisonment, and an average of a little under five years. We therefore do not think that any change to the approach in s 311(1) is required.

3.63The same cannot be said for the approach to conspiracies under s 310. The maximum penalty for conspiracies should be set on the basis that the plan is not carried through to fruition. An offender convicted of a conspiracy should therefore be subject to a maximum penalty that is substantially lower than that available for the completed offence. It follows that in our view the maximum penalty in s 310 is inappropriate.

3.64We wonder whether the maximum penalty for conspiracies relating to offences punishable by seven years or less was originally set on the basis that a conspiracy might be charged even when the offence to which the conspiracy relates is actually carried out. In our view, however, the appropriate charge in such circumstances is the offence itself, with the fact of the conspiracy taken into account as an aggravating factor.

3.65We are also mystified as to the rationale for the approach to conspiracies relating to offences punishable by more than seven years. A single maximum penalty for a conspiracy to commit sexual violation and a conspiracy to commit, say, forgery, cannot be justified.

3.66Since a conspiracy is further removed from the actual offence than an attempt, it could be argued that it should have a lower score, in accordance with the overall approach we have taken to risk. However, the culpability associated with a conspiracy is enhanced by the fact that there is a common purpose to commit a particular crime by two or more persons. On balance, these factors more or less weigh each other out. A conspiracy should therefore have the same maximum penalty for a particular offence as an attempt – that is, half the maximum penalty that is prescribed for the completed offence.

3.67In addition to attempts and conspiracies, there is a further category of inchoate offence that is dealt with under s 311(2): inciting, counselling or attempting to procure any person to commit an offence, when that offence is not in fact committed. This offence is treated in the same way as an attempt, with the same maximum penalty. Although the activity is further removed from the completed offence than an attempt, it has the added culpability arising from the attempt to involve others in offending. In our view, it should therefore be treated in the same way as a conspiracy. We therefore do not think that any change to the current approach in s 311(2) is required.

3.68We note that inciting, counselling or attempting to procure murder is expressly provided for as a separate offence in s 174 of the Crimes Act, with a maximum penalty of 10 years. We do not see any need for the existence of this offence. It is adequately covered by s 311(2), which provides for the equivalent maximum penalty of 10 years when the completed offence carries life imprisonment. We therefore think that s 174 should be repealed. We have not scored or ranked it.

3.69The remaining category of inchoate offence is preparatory conduct that precedes an attempt and does not, in itself, cause any of the harms arising from the completed offence. In broad terms, we again scored these offences simply by applying the risk rules (set out above at paragraph 3.50). Our approach to s 55 of the Arms Act 1983 illustrates how this was done. Under that section, it is an offence to carry a firearm or other weapon with intent to commit an offence punishable by three years’ imprisonment or more. There is, of course, a risk associated with the mere carriage or possession of firearms. Hence s 45(1) of the Arms Act makes it an offence to possess any firearm except for some lawful, proper and sufficient purpose. We scored the latter offence on the basis of a low risk, but high consequence, to physical integrity. In relation to s 55, we took that as a starting point. However, we recognised that the intent to commit an offence (which in the worst class of case would involve an intent to kill) elevated the risk and introduced a risk to other interests as well (such as material support), and we developed a harm score on that basis. Thus, rather than the intent to commit an offence being recognised by way of an enhancement to culpability in Step 4 of our process, it was recognised by way of an increase in the harm score under the risk rules set out above.

23For example, the maximum penalty for a first or second offence of driving while disqualified (Land Transport Act, s32(3)) is three months' imprisonment or a fine not exceeding $4500. Those who commit a third or subsequent offence are liable to two years' imprisonment or a fine not exceeding $6000 (s 32(4)). We therefore reduced by 50 per cent the harm score for the offence under s 32(3) to recognise the substantially lower culpability.
24A similar process is suggested by von Hirsch, Ashworth and Jareborg, above n 19, at 214.